Emerging Topics in Environmental Law

On April 14, 2016, the U.S. Fish and Wildlife Service (USFWS) announced that it would not list the Pacific Fisher under the Endangered Species Act. The fisher (Pekania pennant) is presently found in Southern Oregon, Northern California, and the Southern Sierra Nevada Mountains, although historically, the species ranged the northern forests of Canada and the United States, as well as forests in the Appalachian, Rocky, and Pacific Coast Mountains. The fisher’s range was reduced in the 1800s and early 1900s through over-trapping for pelts, the poisonous impacts of predator and pest control, and alterations of forested habitats caused by logging, fire, urbanization, and farming. Only two naturally occurring fisher populations survive—one in the southern Sierra and another in Northern California—although the fisher has been reintroduced in the Olympic Natural Park, the Cascade Range, and private timberland in the northern Sierras. Reports from the studies of the fisher reintroduction on the Olympic Peninsula are positive. Continue Reading

Earthjustice, representing a number of environmental groups, sued EPA on Friday alleging that EPA is in violation of the Clean Water Act because it has not finalized the draft rule it published back in September that set water quality standards for toxics in Washington based on higher fish consumption rates. This lawsuit is not a surprise, because it came after the requisite 60-day notice was sent to EPA back in December. It is also not the first time this group of plaintiffs have sued EPA with respect to this issue, having done so more than two years ago. That lawsuit was dismissed on summary judgment.

The complaint and the 60-day notice detail the claim against EPA. The plaintiffs allege that, under Section 303(c)(4), EPA had 90 days from the date it published the draft rule for Washington to promulgate that rule. Because the draft rule was published on September 14, 2015, that 90-day time period expired on December 14, 2015, a week before the 60-day notice was sent to EPA. This lawsuit comes just a few weeks after Ecology opened a new comment period on the state rule, which originally was subject to public comment about a year ago, before Governor Inslee paused the rulemaking effort last August.

Ecology has published a table comparing the previous Ecology draft of the rule, the current draft of the Ecology rule, and EPA’s draft rule on its webpage, and I summarized some of the differences between EPA’s approach and Ecology’s approach back in September. Ecology’s rule and EPA’s draft rule both share the same fish consumption rate (175 grams per day) and excess cancer risk (one in a million), but the Ecology draft rule contains implementation tools such as variances, intake credits, and schedules of compliance to help dischargers achieve compliance with more stringent criteria that result from the increased fish consumption rate. In addition, EPA’s approach to PCBs, arsenic, and mercury are much more numerically stringent (and likely unattainable) as compared to Ecology’s draft rule.

What are the implications of this lawsuit? First, if successful, it could speed the adoption of EPA’s draft rule, resulting in water quality standards for toxics in Washington that are potentially unattainable, and that do not have the state-specific implementation tools many believe will be necessary components of an effective and manageable water quality program. The complaint seeks an order from the Court directing EPA to promulgate the draft rule, which could be issued by the Court in the next few months depending on briefing schedules and the time it takes EPA to answer the complaint. Second, this lawsuit should keep the pressure on Ecology to get through the rule making process and submit its rule to EPA for review and approval, which is anticipated to happen in August. This lawsuit also sets up an interesting showdown between Ecology and EPA regarding that approval, and raises important questions about the primacy of states in managing delegated programs under the Clean Water Act.

This is not the last litigation that we will see regarding this subject matter–I’ll continue to post updates.

Yesterday, following quickly on the heels of Governor Inslee’s withdrawal of Washington’s version of the fish consumption rule, EPA released draft water quality standards for toxics for Washington. These standards, if adopted, are significantly more stringent than those Ecology had proposed.

By way of background, the core issue that emerged over the last two years is the attainability of water quality standards for toxics based on a high (175 gram per day) fish consumption rate. Governor Inslee’s proposed solution was to adopt standards applying that rate, but to also adjust the excess cancer risk used to calculate the standards from one in a million to one in one hundred thousand. Coupled with a broader toxics reduction strategy (that failed to make it through the legislative session this year), this approach had the support of the regulated community, although it was meeting significant resistance from tribes and environmental organizations.

How does EPA’s proposed rule compare to Ecology’s version? Like Ecology did in the draft rule, the EPA rule also applies a 175 gram-per-day consumption rate. The most significant change is the return to a one-in-a-million cancer risk, rather than the one-in-one-hundred-thousand risk level proposed by Ecology. Ecology’s rulemaking process had identified three problematic toxics: PCBs, arsenic, and mercury. Ecology’s approach to these chemicals was to retain the previous NTR value, or 0.00017 micrograms per liter for PCBs, adopt the Safe Drinking Water Act regulatory level of 10 ppb for arsenic, and to defer development of a mercury criterion until a comprehensive mercury rule could be developed. Continue Reading

I have written extensively on the efforts by the Washington Department of Ecology to revise Washington’s Water Quality Standards to account for a higher fish consumption rate. This summer was when we were supposed to see the final rule be submitted to EPA for review and possible approval. In a nutshell, the controversy around this rule has to do with the upward revision in the fish consumption rate used to calculate Washington’s Water Quality Standards. That revision (from 6.5 grams per day to 175 grams per day) would result in more stringent WQS for many toxics—with the fear among dischargers being that those new criteria would be unattainable. Governor Inslee’s proposed solution—now over a year old—was to revise the excess cancer risk rate used in the WQS calculation from one in a million to one in one hundred thousand, and then couple the revised WQS with a package of regulatory efforts designed to address toxics from diffuse sources.

The latter part of Governor Inslee’s plan required legislative action. The legislature failed to act during this last session and, as a result, Governor Inslee recently announced that he was sending Ecology back to the drawing board to consider options in light of the failure to pass his comprehensive toxics reduction package. I have yet to see a reaction from EPA Region 10, but there are a couple of scenarios that may result from this announcement: Continue Reading

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